Sweeping state-level abortion restrictions present a direct test of whether the Supreme Court is willing to revisit Roe v. Wade, the landmark abortion-rights precedent that has spurred deep divisions for nearly 50 years.

States with antiabortion legislative majorities have long been weighing how to prompt a Supreme Court review of the 1973 ruling, but generally have preferred a strategy aimed at reducing the procedure’s availability through incremental restrictions that hamper providers, or by forbidding late-term abortions.

But following last year’s retirement of Justice
Anthony Kennedy,
the key fifth vote on a nine-member court for preserving Roe’s central guarantee, that attitude has shifted. President Trump vowed during his 2016 campaign to appoint jurists who would overturn the decision. Since taking office, he has named Justices
Neil Gorsuch
and
Brett Kavanaugh
to the bench. Neither of them has publicly committed to reversing Roe, but many conservatives are optimistic.

During this state legislative season, lawmakers in several conservative-led states have proposed bills that are designed to challenge Roe in court, and governors have been more willing to sign them than ever before. The most dramatic example came this week in Alabama, which enacted a near-total ban on abortion, with an exception only when a woman faces a serious health risk; the Legislature rejected exceptions for victims of rape or incest. Missouri’s Legislature this week passed a ban on abortion after eight weeks of pregnancy.

While conservative states have been moving to push boundaries with their new abortion restrictions, liberal ones including New York have taken steps to ensure abortion rights within their borders in case Roe falls or is pared back.

“You really have the red and the blue nation at odds,” said Peter Charles Hoffer, a legal historian at the University of Georgia.

The 1973 Roe decision, by a 7-2 vote, attempted to balance competing interests, that of a woman over her own body and state governments’ “in safeguarding health, in maintaining medical standards, and in protecting potential life.” It prevented restrictions on abortion during the first three months of pregnancy, but allowed them as gestation progressed. Abortion could be forbidden altogether, with health exceptions, in the final trimester.

The decision invalidated abortion restrictions in more than 40 states and was immediately controversial.

By the 1980 presidential election, the case had become a defining issue. That era was central to the legal and political education of Chief Justice
John Roberts,
who today may hold the pivotal vote over Roe’s future. In 1980, he clerked for Justice William Rehnquist, one of Roe’s two dissenters.

As an official in the George H.W. Bush administration, the future chief justice wrote a brief asserting that “Roe was wrongly decided and should be overruled.” As a federal appeals judge and then on the Supreme Court, however, he hasn’t expressly taken that position—even while never finding that any abortion restriction ran afoul of precedent.

Neither of the Trump appointees, Justices Gorsuch and Kavanaugh, has issued a judicial opinion denying the existence of abortion rights. But their published views on related issues suggest they may not be likely to believe in a constitutional right to terminate pregnancy.

What is unknown, however, is how they and other conservatives will view abortion rights in light of stare decisis—the principle of leaving legal precedent in place because the legal system prizes stability and predictability. While reserving the right to overrule egregious precedents, justices may passionately dispute which prior decisions merit such reversal.

In 1992, three Republican-appointed justices decided that the Roe precedent should stand, despite their misgivings over abortion. “The reservations any of us may have in reaffirming the central holding of Roe are outweighed” by the Constitution’s broad concept of individual liberty, “combined with the force of stare decisis,” Justices Kennedy,
Sandra Day O’Connor
and David Souter wrote in Planned Parenthood v. Casey, which nonetheless upheld most of a Pennsylvania law regulating abortion.

Since, then, the percentage of registered voters who support preserving Roe has only grown, to an all-time high of 71% in July 2018, the last time the question was asked in a Wall Street Journal-NBC poll.

Norma McCorvey—the ‘Jane Roe’ whose 1973 victory in the Roe case established the right to an abortion—and her attorney, Gloria Allred, in front of the Supreme Court in 1989.
Photo:
J. Scott Applewhite/Associated Press

No justice has publicly wrestled with the significance of stare decisis more than Justice Kavanaugh, Justice Kennedy’s successor on the court, who has raised questions about the doctrine during oral argument several times during his first term on the court.

When deciding to overrule a decision, “the question is how we figure out what the compelling reason is, and that’s very difficult,” he said during a January argument concerning a 40-year-old precedent that allowed a state government to be sued in another state’s courts.

Even if the court’s conservatives expect that, as Mr. Trump predicted in 2016, Roe will be “automatically” overruled, there are reasons to doubt such a decision would come before the 2020 election. In other areas on the conservative agenda, such as curbing the influence of organized labor or reducing federal protection of voting rights, Chief Justice Roberts has preferred to move in incremental steps before delivering a final blow.

That approach is assisted by a docket that is largely discretionary, meaning the justices can avoid cases they do not want to hear. The court, for example, in 2016 chose not to review a restrictive North Dakota law, struck down by lower courts, that would have prohibited abortions after a fetal heartbeat is detected.

If state laws like Alabama’s that take direct aim at Roe are invalidated in the lower courts, the justices could choose to just stay out of the matter. That avoidance, however, could become more difficult if a lower court were to uphold one of these state laws.

At least in the near term, the biggest Supreme Court abortion battles are likely to focus not on whether Roe should be preserved, but on what kind of rights it guarantees. Antiabortion advocates are pushing the courts to take a narrower view of what constitutes an undue burden on a woman’s right to choose an abortion.

The court almost certainly will hear at least one abortion case during its next term, which begins in October. The justices in February, on a 5-4 vote, issued an emergency order that temporarily blocked Louisiana from implementing regulations that could considerably restrict the availability of abortion in the state. But it will be at least September before the court announces its next move.

The Louisiana law requires doctors who perform abortions to hold admitting privileges at a hospital within 30 miles of where they offer the procedure. A conservative federal appeals court upheld the law even though the Supreme Court struck down a similar regulation in Texas in 2016.

Notably, Chief Justice Roberts joined with the court’s four liberal justices in blocking the Louisiana regulations for now, even though he dissented in the court’s 2016 opinion striking down the Texas restrictions.

Several other petitions seeking Supreme Court review of abortion restrictions are currently pending, and the justices could act on some of them in coming weeks.

In one, Indiana asks the court to revive its law barring abortions for reasons of disability, race or sex of the fetus, and in another, it seeks to restore a measure that would require a woman to have an ultrasound at least 18 hours before she could have an abortion.

Alabama, meanwhile, has a petition pending that seeks to revive its ban on the procedure used most commonly in second-trimester abortions, known as dilation and evacuation.

As for Justice Kavanaugh, on Monday he joined the 5-4 conservative majority to overrule the state sovereign-immunity precedent he pondered at January arguments.

Justice
Stephen Breyer,
writing for the liberals, cited the 1992 Casey ruling preserving abortion rights in his dissent. “Today’s decision can only cause one to wonder which cases the Court will overrule next,” he wrote.

—Louise Radnofsky contributed to this article.

Precedent Setting

Key Supreme Court rulings on abortion

Roe v. Wade, 1973: By a 7-2 majority, the court said that a woman has a constitutional right to terminate her pregnancy, though that must be weighed against the compelling interest of the state in preserving life. Result was abortion can be banned only after a fetus is viable outside the womb, though there must be exceptions to preserve the health or life of the mother.

Webster v. Reproductive Health Services, 1989: The court upheld a Missouri statute prohibiting the use of public funds, facilities or employees to provide abortions or abortion counseling; a woman’s right to have an abortion does not mean the government must assist her in having one, said the 5-4 decision.

Planned Parenthood v. Casey, 1992: Court reaffirms Roe in another 5-4 decision, but creates a new “undue burden” standard to measure the validity of state laws regulating abortion: Does the law purposefully or in effect create a substantial obstacle for a woman seeking an abortion before the fetus is viable?

Stenberg v. Carhart, 2000: A 5-4 court struck down a Nebraska law banning so-called “partial birth” abortions because it didn’t have an exception to preserve the life of the mother.

Gonzales v. Carhart, 2007: Several years later, though, Congress passed a similar law without an exception to preserve the life of the mother, and the Supreme Court upheld it, 5-4. The turnaround reflected the replacement of Justice Sandra Day O’Connor with Samuel Alito.

Whole Woman’s Health v. Hellerstedt, 2016: A 5-3 majority said Texas regulations requiring doctors performing abortions to have admitting privileges at a nearby hospital and mandating clinics to meet the standards of a standalone surgical center imposed an undue burden on women seeking abortions. Most abortion clinics in the state would have been forced to close.

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